Miller v. Clarke

Miller, J.

1 XT SURY. The first question presented for our determination is as to the validity of the judgment confessed by H. H. Steele in favor of the defendant Clarke. It is assailed on two grounds, first “ that said Steele was not at the date of said judgment indebted to said Clarke in any sum whatever,- but that said pretended statement and the judgment rendered thereon were created and caused to be placed there ” to defraud the creditors of said Steele.

There was no attempt to sustain this claim by evidence on the trial, nor is there any thing in the whole case tending to establish it. On the other hand the bonafides of the transaction is shown by affirmative evidence by defendant, which was properly admitted, except that it appears more than legal interest for the money loaned by Clarke to Steele was charged and included in the judgment. It is claimed by appellants that this fact of usury in the judgment taints it as fraudulent as to them. The mere fact of the judgment embracing more than legal interest does not render the confession fraudulent, and if the judgment thereon be duly rendered and is regular *328 in all its parts, it is in the absence of fraud or other special ground for equitable relief, conclusive against the defense of usury even when set up by the usurious debtor himself. Two-good & Elliott v. Pence, 22 Iowa, 543 .

It has been frequently held by this court that, before judgment, the defense of usury can be interposed only by the debtor, and cannot be set up by a stranger to the contract alleged to be usurious. See Carmichael v. Bodfish, 32 Iowa, 418 , and cases cited in the opinion. The attack on this ground is made too late and by strangers having no right to do so.

3. conitessionad judgement. II. It is next urged that Clarke’s judgment is void because of insufficient statement of facts to confer authority on the clerk to enter it. The statement is, “ that the consideration of this judgment of confession is for borrowed money. And that there is now due the said Clarke the above stated sum with interest as above stated.” The judgment was entered up by the clerk in vacation, and this judgment was subsequently read and approved by the court prior to the commencement of this action.

In Vanfleet v. Phillips, 11 Iowa, 558 , the statement was substantially the same as here, to wit: For “ money borrowed by me from the said Yanfleet, and the interest due thereon,” etc., and this was held sufficient. 'Wright, J., in delivering the opinion of the court, says: “ But it is claimed that the facts out of which the indebtedness arose should have been stated with greater particularity” — just what appellant claims in this ease. “ This position,” says Mr. Justice Weight, “ misapprehends the meaning of the statute. When it is said that the written authority must state concisely the facts out of which the indebtedness arose, it is not intended that it shall state them particularly and specifically, but briefly. To be concise is to be brief. To make a statement in a concise manner is to make it as short and brief, and yet as intelligible as possible, and not make it particular and specific.” It is also there said that “ the character of the indebtedness is so concisely stated that the mind is left in no doubt or uncertainty.’? *329 The substance of that statement was that the indebtedness was for money borrowed by one party from the other and interest thereon. The sum borrowed was not stated there, as it is not in this case. Marvin v. Tarbell, 12 Iowa, 93 , is like Vanfleet v. Phillips in statement and holding. That holding was also followed in Edwards v. Nichols and Richards, id. 607 .

It is urged by appellant that this case is unlike the eases cited, in that it is not stated from whom the money was borrowed and by whom. This objection is too technical to be sanctioned by a court of equity. The statement authorizes the clerk to render j udgment against Steele for $1,020, with interest and costs, who says therein that “ the consideration of this judgment of confession is for borrowed money, and that there is now due the sañd Olarke the above stated sum, with interestThere can be no room for uncertainty on this statement, in respect to who was the borrower, and who the lender.

4., Equity» The defendant’s judgment became a valid subsisting lien on the lot in question prior to the respective judgments of the plaintiffs. It is clearly shown, however, that the de- *7 3 fendant, Clarke, at the time of making the loan to H, H. Steele, took, in addition to the confessed judgment, certain promissory notes belonging to Steele as collateral security for the loan; that these notes have been merged into judgments against solvent parties; that there is sufficient of these collaterals to fully satisfy the balance due on Clarke’s judgment; that IT. H. Steele is insolvent, and that plaintiffs have no security for their respective judgments, except the said lot 14. The defendant, Clarke, has a lien upon two funds. The plaintiffs upon but one of such funds. It will work no prejudice or injustice to any one to require Clarke to resort first, to the fund upon which plaintiffs have no lien. He should, therefore, be required to proceed, first upon the collaterals which he holds as security for his judgment, before proceeding to sell the lot in question. See Dickson et al. v. Chorn et al. 6 Iowa, 19 , and authorities cited.

*330

6. partnership.

*329 This brings us to the consideration of the case made by the interven ors. The instruments upon which they base their *330 respective claims, fail to show that they are credipp gteeje_ Indeed, they do not claim to be such creditors. They mer that they are creditors of D. Steele and H. H. Steele. No evidence, however, is furnished of the truth of this averment. Upon the face of the certificates of deposit set out, D. Steele is the sole debtor.

But conceding that the intervenors are creditors of D. and H. H. Steele, still the individual creditors of the latter are entitled to have his individual property first applied to the satisfaction of their judgments, before such property shall be applied to pay the joint creditors. Hubbard v. Curtis, 8 Iowa, 1 ; Story on Part., § 363, and cases cited in notes. The plaintiffs and the defendant Clarke, are, respectively, individual creditors of H. H. Steele. The property in controversy is the individual property of said Steele, and is liable to be disposed of as above indicated.

As to the validity of Clarke’s judgment, and the bona fides of the transactions between him and H. H. Steele, the judgment of the court below will be affirmed. As to the intervenors, the judgment will be reversed, and the cause remanded, with directions to the court below to render a decree requiring the defendant, Clarke, to first exhaust the security held by him upon the collaterals in his hands, before proceeding to sell the lot on which his judgment against Steele is a lien; that the plaintiffs shall, after the said judgment of Clarke is satisfied, be entitled to proceed to subject said lot lé to the payment of their claims, and that the petition of the intervenors be dismissed, or such decree will, on application, be rendered in this court.

The plaintiffs will pay the costs of the court below, and the intervenor will pay the costs of this appeal.

Reversed.